California's Proposition 14: Weaknesses and Remedies

On June 8, 2010, the voters of California approved Proposition 14, “The Top Two Primaries Act,” (“the Act”) with 53.7% of the vote. In its own words, the Act’s intention is “to protect and preserve the right of every Californian to vote for the candidate of his or her choice.” All general elections will be won with a majority of the vote, and voters in the primary are generally free to vote for their true first choice with little fear that doing so will help elect their least favored candidate. Many of its backers argued that by giving independent voters more influence in determining which candidates advance to the general election, the Act would result in more moderate politicians and less gridlock in the legislature.

The Act and associated statutes establish a system in which all registered voters can participate in a primary to be held in June and cast one vote for the candidate of their choosing for each office. Instead of separate primary contests according to party affiliation, there will be an “open primary” where all candidates compete against one another. Candidates may choose either to be unaffiliated or to identify with a state-recognized party, and voters can vote for any candidate, regardless of party. In the November general election, voters choose between the two candidates who received the most votes in the primary. No other candidates are permitted on the ballot, nor are write-in candidacies allowed.

While FairVote respects the decision of California voters and applauds the goal of giving voters more choices, more competitive elections and fairer representation than that provided by the system replaced by the Act, we have concerns about several ramifications of the hastily-drafted language of statutes implementing the Act. Several of the Act’s problems are wholly or in part caused by these statutes rather than the language of the Act itself. We recommend that the legislature enact several statutory changes that will not require any further changes to the state constitution. We believe these changes will make the Act more likely to succeed in its intent of providing voters with more choice and better representation. We do not believe they should be controversial. Indeed, several of our recommendations are already part of Washington State’s version of the Top Two law.

After explaining our concerns about the Act and associated statutes, we detail our recommended statutory changes to mitigate the impact of these defects. We also explain more substantial changes involving establishing an “Open General Election” that would require amending the Act in California, but should be considered by states or jurisdictions interested in the open primaries model.